The economic benefits of a mining project will now be the ‘principal consideration’ for decision-makers such as the NSW Planning Assessment Commission (PAC) when they consider new mining developments and expansions, following changes introduced this month by the NSW Government.

The amendments to the State Environmental Planning Policy (Mining, Petroleum Production and Extractive Industries) 2007 (Mining SEPP) apply to coal and other minerals, but not coal seam gas.

The Mining SEPP now prioritises the significance of the mineral resource over other environmental, social and economic considerations in the SEPP, such as:

dust and noise pollution affecting local residents

limiting truck traffic on local roads near houses and schools

compatibility with other land uses such as farming, villages, vineyards or horse studs

protection of water resources, threatened species and biodiversity, minimising greenhouse emissions and waste, and rehabilitating the land.

Consideration of these matters is to be ‘proportionate’ to the significance of the mineral resource, based on advice from the State mining department.

The amendments limit the conditions that can be placed on mining projects in relation to five environmental and social impacts – cumulative noise levels, air quality levels, air blast overpressure, ground vibration and aquifer interference. If ‘non-discretionary development standards’ for these impacts are met, the project cannot be refused on those grounds, and the decision-maker cannot require ‘more onerous standards’. However, if impacts exceed these standards, decision-makers may still approve the project.

EDO NSW gave detailed comments on the draft amendments, along with many other submitters, although few changes were made and no EDO NSW recommendations were taken up. For example, we suggested that decision-makers should not be required to prioritise the economic benefits of mining as the ‘principal consideration’ ahead of any negative impacts or more appropriate land uses; and that the Mining SEPP should promote the ecologically sustainable development of significant mineral resources (consistent with the existing Mining SEPP and planning laws).

EDO NSW also proposed that the environmental standards should be improved to meet World Health Organisation recommendations and National Environment Protection Measures; should allow for continuous improvement rather than a ceiling on conditions; and should protect a wider range of residents and sensitive natural areas.

The Planning Department’s website stated that the policy changes ‘aim to increase confidence for investors and the community about how decisions are made on mining proposals.’ The amendments are also intended to require that ‘economic and environmental issues… are properly balanced’.

The policy changes follow a rare successful challenge by the residents of Bulga village, in the Hunter Valley, to the expansion of the Warkworth coal mine beyond 2021. The Land and Environment Court refused the development application, due to significant and adverse noise, dust and social impacts on Bulga residents, and on biodiversity – including endangered plant and animal species. The case also provided scrutiny of the economics behind the mine expansion. Rio Tinto and the Planning Department are now appealing the Court’s decision.

Even the Planning and Assessment Commission’s (PAC’s) original approval of the Warkworth coal mine expansion, under the old rules, observed that the system of approvals for mining was already weighted against local communities. The PAC described the approval of mining developments in NSW as ‘almost inevitable’ when ‘the overall economic benefits of the mines are balanced against the local community impacts.’ It said that ‘in almost all cases’ mines had been approved and local communities ‘have either been radically altered in character or become non-viable.’

The PAC’s comments underline the importance of more robust and balanced environmental, social and economic criteria in development decision-making processes. It also highlights the need for better data and close scrutiny of what NSW gains and loses when major projects are approved. It is important that the worth of our communities – and their social, cultural and environmental fabric – is truly valued.

However, the new weighting of factors under the Mining SEPP will now make the refusal of a mine approval on environmental and social grounds, similar to Bulga, even more difficult.

The new policy is unlikely to achieve the stated aim of requiring that economic and environmental issues are ‘properly balanced’.

By focusing primarily on the economic benefits of developing significant resources, the new policy allows competing and complementary land uses to be downgraded. It prioritises short-term gains, by requiring decision-makers to give ‘principal’ weight to mining a significant resource, even if this may be an unsustainable land use in the circumstances.

It also likely to decrease, rather than increase, the NSW community’s confidence about how decisions are made on mining proposals, and reinforce public perceptions that mining industry regulation, more than any other industry, is ‘too lax’.

Friends, supporters and observers of EDO NSW may have noticed a new round of attacks on our public interest environmental law office in recent days and weeks, via the usual suspects of the NSW Minerals Council and The Australian newspaper.

While these reports are short on ‘news’ and run long on rehashing earlier attacks on EDO NSW, they are clearly aimed at trying to politicise our role as an independent community legal centre that specialises in public interest environmental law.

Our EDO NSW team takes the sometimes hysterical tone of The Australian’s reporting about our office with a large grain of salt, however, we do find headlines like ‘Public-funded EDO circus must end’ quite offensive. We think many of our supporters will feel the same way.

Last Friday The Australia’s legal correspondent sought to seize on written comments by our outgoing Chair Murray Wilcox AO QC, the distinguished retired Federal Court judge, who reflected on over 6 years at the helm of our Board in his final contribution to EDO NSW, published last month in the 2012/13 annual report.

Readers of this post can assess the content of the most recent stories for themselves here:

As Mr Wilcox noted, the EDO NSW is a law office not a campaign one. Our team is made up of lawyers, scientists and other professionals and support staff, who provide professional, expert and independent legal advice to individuals and community groups. We have clear and robust standards in place to determine when we will take on a case, and indeed when we will provide written advice – namely, that the matter needs to satisfy our public interest guidelines.

We receive funds from a range of sources, including a sizeable proportion which is not taxpayer funds, and we are always scrupulous in ensuring that we meet the obligations set out in funding and grant agreements.

It is also worth noting that when EDO NSW is acting for any client in a litigation matter, such cases are public hearings, and our clients are disclosed on our website and via our annual reports.

Where legal cases we work on end up before a court, which is only a small fraction of the work we do, we act on behalf of community-based clients who have satisfied us – and a senior barrister – that they have rights to be heard under law. Which of course is why our system has courts in the first place, and why due legal process is a core component of our healthy democracy.

*Jeff Smith is the Executive Director of EDO NSW.

FOOTNOTE: Also for the record, the following was sent to The Australian last Friday as a Letter to the Editor.

LETTER TO THE EDITOR, THE AUSTRALIAN
In rehashing mining industry-led criticisms of EDO NSW, your legal correspondent Chris Merritt (Taxpayers still fund anti-coal disputes, 1/11/2013) continues to muddy the waters about the source of grant monies from the Public Purpose Fund of the Law Society of NSW, or PPF. While the NSW Government of the day has always had a consent control over grants made by the PPF Trustees, the actual monies are not taxpayer funds, but rather the accumulated interest earnings on client funds held in solicitors’ trust accounts in NSW. It is a longstanding tradition that the PPF makes regular grants to community legal centres providing public interest services, including EDO NSW, among other recipients. The PPF is fully informed about the work undertaken by EDO NSW as an independent, not-for-profit, specialist public interest environmental law office that has served the community of NSW since 1985.

The Land and Environment Court has found that a case brought by EDO NSW on behalf of the Fullerton Cove Residents Action Group to protect the environment “epitomises the very concept of litigation properly brought in the public interest.”

The Court ordered that, even though they lost the case, the residents should not have to pay the legal costs of the Department of Trade & Investment. The Court also ordered the Department to pay the legal costs of the residents group in disputing the costs of the court case.

What was the case about?The residents group had challenged an approval of a CSG pilot project located on a floodplain, adjacent to an internationally-listed wetland, with wells that will continuously extract gas and water from depths of 800-900 meters for at least 12 months.

The residents went to Court because they were concerned that there had been no groundwater assessment, and a full Environmental Impact Statement should have been prepared to assess impacts on biodiversity and groundwater.

In March this year, the Court dismissed the residents group’s case, finding that the groundwater and biodiversity assessments met the standards set by our planning laws. After judgment, the Department pursued the residents for its legal costs. The CSG company, Dart Energy, did not.

What did the Court say about costs?The Court ordered that because the residents group’s case was genuine public interest litigation, it should not have to pay the legal costs of the Department in responding to its appeal.

During the hearing on costs, the Department argued that the residents weren’t really concerned about the environment, they just wanted to stop the development at Fullerton Cove.

The Department extensively cross-examined both the residents group and EDO NSW about the residents’ motivations in bringing the case. However, according to the judge, the cross-examination “only served to reinforce the genuineness of Fullerton’s contention that it had commenced the litigation in the public interest in order to protect Fullerton Cove from what it perceived to be an inadequate assessment of the potential adverse consequences of coal seam gas exploration in that environmentally sensitive area.”

The Court also rejected the Department’s arguments that the case didn’t raise any new points of law and had little merit. Instead, the judge found that “not only did the litigation raise one or more novel issues of general importance, but that the litigation has contributed in a material way to the proper understanding, development and administration of the law.”

The Court also ordered that the Department pay the residents group’s own legal costs of having to dispute the costs of the litigation.

EDO NSW had written to the Department on a number of occasions, urging it to accept that the resident group’s case was public interest litigation. On each occasion, the Department declined the group’s offers. The judge described the Department’s responses as, “for a model litigant, less than fulsome and unhelpful in the circumstances.” The Department must now pay the residents group’s costs of arguing the point.

Why do we have special rules for public interest cases?The Land and Environment Court has special rules in place which are designed to facilitate access to justice in exactly these kinds of cases. If a case is genuinely brought in the public interest, the person bringing the case should not be punished with a costs order simply because they lost.

If the law were to allow the general public to be frightened away from the Courts by the prospect of adverse costs orders worth tens of thousands of dollars, there would be little point in allowing those people access to justice in the first place. As Justice Biscoe of the Land and Environment Court said recently in another public interest case (Friends of King Edward Park v Newcastle City Council):

“There is little point in the legislature opening the door to public participation in this way if the doorway is then blocked by a menacing costs hound which threatens to savage the responsible public interest litigant who dares to enter and loses.”

Many local communities around NSW have made it very clear that they see a strong public interest in legal protection for the environment and heritage – not only ‘trees’, but water quality, biodiversity including much-loved species like koalas, the integrity of farmland, human health, local amenity, indigenous culture and more.

These local communities also see that their concerns are not addressed by commercial law firms or models. Which is precisely why Australia and NSW have maintained a decades-old tradition of public funding for a range of community legal centres, including public interest environmental law ones.

This meets explicit community demand for independent expert legal advice, which on rare occasions includes courtroom litigation, and more subtly bolsters the overall administration of the legal system by filtering out cases that lack strong legal merit and a substantial public interest element.

Many community members also remain deeply concerned about the planning system and the impact of decisions by governments and public agencies on developments that affect them. Such people will be alarmed at The Australian’s proposition that a ‘market model’ should replace the current approach based on significant public funding.

Last week, EDO NSW successfully gained special orders in the Land and Environment Court to protect culturally sensitive information.

EDO NSW is currently acting for a Hunter Valley environment group in a case challenging the decision of the NSW Planning Assessment Commission to approve Ashton Coal’s proposed South East Open Cut coal mine.

One of the issues in the case is whether the open cut mine should be allowed to go ahead over an area that Ashton Coal’s own consultant says is of high cultural significance.

As part of the case, the Court will hear evidence from a cultural heritage expert about the cultural values connected with the site.

Ashton Coal sought access to the expert’s research materials, which included documents containing sensitive information from traditional knowledge holders about their connection with country and stories passed on by Aboriginal elders. The documents also included personal information of Aboriginal people obtained from Births, Deaths and Marriages.

The documents were produced by the cultural heritage expert to the Court. The question of whether access to the documents should be granted was heard by Registrar Walton on 26 June 2013. The Registrar found that documents did contain personal and culturally sensitive material . The Registrar made special orders limiting access to the documents to certain individuals and, importantly, ordered that no copies are to be made of any of the material.

This is an important outcome; the Land and Environment Court has recognised that traditional Aboriginal knowledge is of a sensitive nature and must be protected.

The orders provide a useful precedent for other cases where cultural information is used as evidence in the Land and Environment Court, and confirm that the wishes of the holders of Aboriginal customary knowledge must be respected.

EDO NSW is grateful for the assistance of barrister Corrina Novak who acted as counsel for the cultural heritage expert in response to the subpoena.

From 1 July this year, one of the pillars of environmental justice is about to be torn down – that is, Legal Aid will no longer be available for public interest environmental cases. It’s been a longstanding part of the architecture for 27 years.

But let’s step back a little. Why does this matter?

Environmental justice is often about access – that is, the ability of concerned community members to protect the environment through the Courts. NSW has long had an iconic right for any person to take action to stop a breach of the law – a broad provision which has meant that Courts have concerned themselves with the substance of a matter, not whether someone is entitled to be there. But that right means little without more. As Justice Toohey of the High Court once said:

“There is little point in opening the doors to the Courts if people cannot afford to come in.”

Legal Aid has allowed people to come in – not willy nilly, as some might say, but where strict means and merits tests warrant it.

It enabled a number of legal cases that tested forestry practices and environmental impact assessment in the early 1990s, saving vital forests. In a similar vein, it has contributed to our understanding of the law, through allowing for test cases on novel points of law. The high profile Walker case, the first case in Australia to consider the impacts of climate change on a proposed development is testament to this tradition.

More recently, it has helped to achieve better environmental outcomes for coal-affected communities (witness the decisions in the Hunter with the Ulan and Duralie mines), or to turn back an unsustainable developments (such as an abalone farm in Port Stephens).

Importantly also, Legal Aid has been crucial to keeping accountability and transparency in the environmental and planning system – holding decision-makers to account and ensuring the system works as it should.

All this – better environmental outcomes, the proper administration of justice and accountability and transparency – will be in doubt once 1 July ticks over.

Changes have been made to the rules governing the water use of mining companies in the Hunter region of NSW. These changes mean that from 2015 all large open-cut and underground coal mines in the Hunter will be exempt from rules that were supposed to protect both groundwater sources (known as ‘alluvial aquifers’) and rivers, particularly during periods of drought. This highlights the importance of assessing cumulative impacts properly, as well as the need for the community to be consulted on decisions that impact how water is managed across NSW.

Changes to the Hunter Water Sharing PlanThe NSW Minister for Primary Industries recently made over 100 changes to the Water Sharing Plan for the Hunter Unregulated and Alluvial Water Sources (Hunter Water Sharing Plan). Water sharing plans establish rules for how water is allocated between different users in a particular area. This includes a requirement to set aside some water for the environment.

The Hunter Water Sharing Plan includes rules intended to protect aquifers and the rivers to which they are connected from ‘over-extraction.’ For example, it contains a set of rules which prohibit pumping water from specified aquifers during drought. These rules are also designed to protect ecosystems that depend on the health of these aquifers and rivers. These ‘groundwater dependent ecosystems’ include dramatic limestone caves containing subterranean lakes which support a variety of fauna such as numerous bat and invertebrate species.

However, two of the recent amendments to the Hunter Water Sharing Plan mean that all licenced major projects approved under NSW planning laws are exempt from these rules. Most mining developments in NSW are categorised as major projects.

What does this mean for the environment?While there is still much to learn about groundwater systems across NSW, we do know that alluvial aquifers in the Hunter are shallow and therefore easily contaminated. We also know that they are under strain from extractive use, and are highly connected to other water sources. The recent amendments to the Hunter Water Sharing Plan risk exacerbating these problems, as well as undermining the health of ‘groundwater dependent ecosystems’.

The changes also seem to be designed to counteract new laws which require mining companies to hold licences for all water that they extract, including ‘incidental take’. Incidental take, which is ‘take’ that occurs when a mine is excavated through the water table, is often uncontrolled and continuous. It would therefore have been difficult for mining companies to comply with rules which prohibited pumping water from specified alluvial aquifers during periods of drought.

In a region characterised by an unusually high concentration of open-cut coal mines, the changes are problematic, not least of all because they undermine the objects and principles of the Water Management Act.

Lack of community consultation
There was no legal requirement for the Minister to consult with the community before making the changes discussed above. Changes of this nature have significant implications for the environment and other users. As such, EDO NSW believes that it is necessary to amend the Water Management Act to ensure that the public can participate in important policy decisions which determine how water is managed across the State.

Click here to read Emma’s article in the Australian Environment Review.

In light of our recent funding challenges and to celebrate Workplace Giving month, EDO NSW recently made the decision to start a Workplace Giving program.

Workplace giving (or payroll giving) provides employees with an opportunity to make tax deductible donations to charities out of your regular pay. This means that even a small regular donation can make a big difference when combined with other regular donors.

For employers, workplace giving can provide a low cost, administratively simple way to create community-business partnerships through mobilising significant funding and volunteer involvement.

For EDO NSW, workplace giving provides long term, stable funding for core programs. This funding requires little administrative cost meaning your donation gets to where it is needed more. EDO NSW’s workplace giving program is designed to support our work in:

Free environmental law hotline which takes nearly 1,500 calls a year.

Community workshops and seminars that focus on increasing the community’s knowledge of environmental legal issues on topics such as planning reform, pollution, mining and coal seam gas, coastal protection, and threatened species. We have run 95 workshops across NSW in the past three years.

Rural and regional work including support to communities on key issues like native vegetation, water plans, coal seam gas, mining, private conservation and local planning.

Indigenous programs providing unique support to the Aboriginal community on culture and heritage issues.

Educational resources including legal guides and Fact Sheets to help the community better understand their rights and responsibilities under environmental legislation.

Policy and law reform work that involves input to major legal reforms that will affect the environment the NSW.

Court cases and mediation which has led to many important environment cases on behalf of communities from the cities to the bush.

Workplace giving is an effective way to make a big difference in the community and it has enormous potential. If just 10% of the Australian workforce donated $5 pre-tax a week through workplace giving, an extra $300 million per year would be raised for the community sector.

Throughout this week (from Monday 20 May), EDO NSW looks at five major changes of the NSW Government’s New Planning System – White Paper. Changes that – as currently proposed – could undermine the Government’s efforts to restore accountability and public trust in the State planning system. In highlighting these issues, EDO NSW also seeks out solutions to give NSW residents, businesses and the environment a positive and sustainable future. So we’ll conclude this series with five essential improvements needed for the NSW planning reforms.

5. Appeals and Enforcement – letting in the light, or shutting out accountability?A final aspect of the planning White Paper goes to the heart of access to justice under the new system – rights to appeal the merits of a decision, and rights to challenge legal errors and breaches through ‘civil enforcement’. These will be critical if the government is to make good on its State Plan goal to ‘Restore confidence and integrity in the planning system’.

Developers’ rights to review and appeal decisions will expand under the White Paper proposals, including against council refusals of ‘spot rezoning’ applications, and where councils fail to approve code-based development applications within 25 days (see Thursday’s post).

On the other hand, there will be no community appeal rights if a code-based development is approved that exceeds agreed criteria (relying instead on limited consultation rights). Community objectors will also continue to lose merit appeal rights against major projects, where the Planning Assessment Commission holds a public hearing – which can be requested at the Planning Minister’s discretion (under the Planning Administration Bill). In other words, the new system entrenches the inequity between developer appeals and community rights to independent accountability through the courts.

As ICAC noted in its 2012 submission to the planning review, ‘The limited availability of third party appeal rights under the EP&A Act means that an important check on executive government is absent.’ Less than 1% of local council decisions are appealed on the merits, and Planning Department statistics shows that 99 out of 100 of these appeals are brought by developers, not community members.

But the benefit of third-party appeal rights goes beyond the few cases where they are exercised. The very existence of such rights puts decision-makers on notice, and leads to better decisions and greater community confidence. Further, as ICAC puts it: ‘The extension of third party merit appeals acts as a disincentive for corrupt decision-making by consent authorities.’

On civil enforcement, consultations have revealed widespread support for ‘open standing’ in the planning system. This allows anyone to enforce a breach of the law in court (as long as they can afford it). The White Paper proposes to retain open standing. However, the draft Planning Bill could seriously undermine this ‘iconic right’, by curtailing the public’s ability to challenge a range of legal errors or breaches in court. This includes fundamental areas such as community participation (see Tuesday’s post) and strategic plans. The Bill also appears to restrict certain third party enforcement rights under State pollution laws, but its full extent is unclear. For example, under these laws, EDO NSW recently assisted a community group to challenge pollution of the George’s River, in breach of the company’s pollution licence. We have raised these concerns with the Planning Department, and are continuing to seek changes that will maintain access to justice. The full force and spirit of open standing rights must be retained if these reforms are to have legitimacy.

Overall, the imbalance of review and appeal rights between developers and community members will continue to limit community confidence in the system. In our view, the draft legislation must be amended to restore accountability and put the community on an equitable footing when it comes to appeal, review and civil enforcement rights.

ConclusionWhen we started this series, there were six weeks left for consultations on the NSW Planning White Paper and draft legislation. Now there are five! Time is short on the community’s chance to shape the scaffolding of the new planning system. But the Government already has nearly 1000 community and local council submissions to its 2012 Green Paper, and many of the calls for a more balanced and sustainable system – socially, environmentally and economically – remain unanswered.

EDO NSW believes fundamental changes are needed to chart a better course for the planning laws. Five major improvements would give much greater confidence that the Government has listened to the community, and is serious about sustainable paths to environmental planning and economic development:

Place ESD at the apex of the planning system, and apply its principles under law.

Boost the status of the Community Participation Charter to make sure it’s binding, and ensure its principles aim high.

Integrate environmental outcomes and sustainability requirements upfront in the strategic planning principles, including cumulative impact considerations and climate change readiness. Public participation and environmental outcomes must flow through the cascade of strategic plans.

Set and communicate clearer limits, safeguards and design incentives around code-based development assessment.

Restore accountability by putting the community on an equitable footing for appeal, review and civil enforcement rights (in areas like community participation, developments that significantly exceed set standards, and projects with the biggest likely impacts).

These changes would help to build a positive legacy for the new planning laws, with shared benefits for communities, businesses, governments and the environment – now and in the decades to come.